Hanjari Ram @ Hanjari Mal vs Civil Judge,J.D.And J.M.,Jalore ...
2023 Latest Caselaw 8723 Raj

[2023:RJ-JD:35925]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4942/2005

Hanjari Ram @ Hanjari Mal S/o Shri Vagta Ram, by caste Choudhary, aged about 41 years, R/o Village Sarwadi-Charnan, Tehsil Siwana, District Barmer at present Residing at Jalore.

----Petitioner Versus

1. Civil Judge (Junior Division) & Judicial Magistrate, Jalore.

2. Legal Representative of Late Shri Pema Ram S/o Shri Indaji (I) Shri Sawa RamS/o Late Shri Pema Ram, aged about 54 years, by caste Choudhary, Residing of Shivaji Nagar, Jalore

3. Rajasthan Financial Corporation, Jalore through its Branch Manager, Ist Phase Industrial Area, Jalore.

4. Regional Manager, RIICO, Industrial Area, Jalore.

                                                                   ----Respondent


For Petitioner(s)            :    Mr. Rajesh Chowdhary
For Respondent(s)            :    Mr. Sudheer Sharma


               HON'BLE DR. JUSTICE NUPUR BHATI
                                       Order
19/10/2023

1. The matter has been listed in the category of 'for hearing'.

With the consent of learned counsel for the parties, the matter is

heard finally, today itself.

2. The present writ petition has been filed under Article 226 and

227 of the Constitution of India with the following prayer:-

"a. the impugned order dated 3.5.05 (Annex.P/4) and order dated 10.2.98 (Annex.P/2) may kindly be quashed and set aside.

b. any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed/issued in favour of the petitioner.

[2023:RJ-JD:35925] (2 of 6) [CW-4942/2005]

c. The costs of this writ petition may kindly be awarded to the petitioner."

2. Brief facts of the case are that the plaintiff-respondent filed a

civil suit No.43/91 for permanent injunction on the basis of alleged

family partition deed dated 03.06.1987 and the agreement to sale

deed dated 27.06.1990. The learned Court below framed issued

and issue No.4 is reproduced as under:-

"आया जिन दस्तावे जात सन 1987 व 1990 के आधार पर वादी ने दावा किया वे हस्ब कायदा स्टाम्प नही होने से एवं रजिस्टर्ड न होने से काबिल अखालसाद नही ं है ।"

The petitioner moved an application on 06.05.1997 (Annexure

P/1) before the Court below submitting therein that as both the

documents in question are unstamped and unregistered thus, the

same cannot be admitted in evidence and thus, prayed that the

admissibility of the documents in question may be decided first.

The learned Court below rejected the application vide order dated

10.02.1998 (Annexure P/2) while stating that as the issues have

been framed the admissibility of the document would be decided

after the evidence is over. The petitioner being aggrieved of the

same, had preferred a revision petition before this Court bearing

No. S.B. Civil Revision Petition No.281/1998 and this Court

granted interim order in favour of the petitioner while directing

that further proceedings in Civil Suit No.43/1991 pending in the

Court of learned Civil Judge (Jr. Division) Jalore, shall remain

stayed till further orders. Thereafter, the judgment was passed by

Hon'ble Supreme Court in Shivi Shakti Co-operative Housing

Society, Nagpur V/s Swaraj Developers & Ors. wherein it laid down

[2023:RJ-JD:35925] (3 of 6) [CW-4942/2005]

certain parameters as per which the impugned order dated

10.02.1998 was held to be an Interlocutory order against which

the revision petition was not maintainable, thus, in light of the

said parameters, the revision petition filed by the petitioner was

dismissed vide order dated 12.11.2003. The petitioner preferred a

writ petition (S.B. Civil Writ Petition No.1577/04) against the order

dated 10.02.1998 in light of judgment passed by the Hon'ble Apex

Court in the case of Surya Dev Rai Vs. Ram Chandra Rai and the

aforementioned writ petition was disposed of vide order dated

09.04.2004 with the directions that it would be just and proper

that the learned Court below before the aforesaid documents are

taken in evidence and before they are exhibited at the time of

examination of evidence of plaintiff, admissibility of those

documents be decided first. The learned Court below while passing

order afresh on 03.05.2005 (Annexure-P/4) has held that the

documents in question are not necessary to be registered and also

ordered that the same would be considered at the stage of

evidence and whether stamp duty is required or not would be

decided at the time of final decision. Being aggrieved of the order

dated 03.05.2005 (Annexure P/4), the petitioner has preferred the

present writ petition.

3. Learned counsel for the petitioner submits that vide order

dated 09.04.2004 (Annexure-P/3) passed in S.B. Civil Writ Petition

No.1577/2004 this Court has specifically directed the learned

Court below that it would be just and proper that before the

aforesaid documents in question are taken in evidence and before

they are exhibited at the time of examination of evidence of

[2023:RJ-JD:35925] (4 of 6) [CW-4942/2005]

plaintiff, admissibility of those documents be decided first.

However, the learned court below without complying with the

directions of this Court has passed order dated 03.05.2005 stating

therein that whether the stamp duty is payable or not on the

documents in question the same would be decided at the time of

final adjudication of the matter. Learned counsel for the petitioner

also relied upon Section 35 of the Indian Stamp Act, 1899 wherein

it has been specifically laid down that the instruments not duly

stamped are inadmissible in evidence and the same is reproduced

as under:-

"35. Instruments not duly stamped inadmissible in evidence, etc. -- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

a).................

b).................

c).................

d).................

e)................."

4. Learned counsel for the respondent submits that the learned

court below has rightly passed the order dated 03.05.2005

(Annexure P/4)as the admissibility of the documents in question

can be decided at the time of final adjudication of the suit pending

below and thus, there is no infirmity in the said order.

5. Heard learned counsel for the parties and perused the

material available on record.

[2023:RJ-JD:35925] (5 of 6) [CW-4942/2005]

6. This Court finds that firstly under Section 35 of the Indian

Stamps Act, a specific provision has been laid down that no

instrument would be chargeable with duty shall be admitted in

evidence for any purpose by any person having by law or consent

of the parties whether to receive evidence or shall be acted upon

registered or authenticated by any such person by any public

officer unless such document is duly stamped. Thus in the present

case, it was obligatory upon the Court below to firstly decide the

admissibility of such document in question which is contended to

be unregistered and unstamped before the same being taken into

evidence. It is further important to note that this Court vide order

dated 09.04.2004 (Annexure P/3) had given specific direction to

the Court below that before (unregistered and unstamped)

documents in question are taken in evidence and before they are

exhibited at the time of examination of evidence of the plaintiff,

admissibility of those unregistered and unstamped documents be

decided first. However, the Court below without examining the

admissibility of the unregistered and unstamped documents in

question has rejected the application of the petitioner.

7. In view of the discussion above, the writ petition is allowed.

The impugned order dated 03.05.2005 (Annexure P/4) passed by

learned Civil Judge (Jr. Division) Jalore is quashed and set aside

and the matter is remanded back to the learned Civil Judge (Jr.

Division) Jalore in order to decide the matter afresh while taking

into consideration the order dated 09.04.2004 (Annexure P/3)

passed by this Court in S.B. Civil Writ Petition No.1577/2004 and

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the relevant provisions as laid down under Section 35 of the

Indian Stamp Act, 1899.

8. Stay petition and all pending applications, if any, stand

disposed of.

(DR. NUPUR BHATI),J 16-amit/-

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